Legal Review & Commentary: Drug abuse leads to nerve damage, and the settlement is substantial 

By Jan Gorrie 
Buchanan, Ingersoll Professional Corp. 
Tampa, FL

News: An orthopedic surgeon with a history of cocaine abuse operated on a patient and severed a nerve root. During the patient’s recovery from surgery, the orthopedist’s drug use became public knowledge, and he resigned from the medical staff. No other physician was assigned to the patient until follow-up surgery was performed.

Prior to trial, the matter settled with all parties contributing a substantial, yet confidential amount.

Background: the Oklahoma Board of Medical Examiners disciplined the orthopedic surgeon in 1988 for cocaine abuse. After attending rehabilitation, he practiced in Texas for eight years and built a substantial medical practice. To maintain his license, he participated in random drug testing. He was tested on Jan. 12, 1998. On Jan. 21, he performed a multilevel decompressive laminectomy at L5-S1, L4-L5, and L3-L4 on the plaintiff. A positive test result for cocaine came back Jan. 26. He voluntarily reported the result to the hospital. He was suspended from practicing at the hospital.

At this point, the woman still was an inpatient at the hospital, recovering from surgery. A hematoma had developed on her spine. On Feb. 2, the hema-toma was surgically removed.

The plaintiffs claimed that the orthopedic surgeon performed surgery that was not necessary, that procedure was negligently performed, that he was under the influence of cocaine and impaired during the time he treated her, and that he severed a nerve root in her back during surgery. The plaintiffs contended there was a good deal of evidence — he had tested positive to a drug test and a toxicologist testified that, based on the physician’s own testimony regarding his history of drug usage and the amount that he habitually used over an extended period of time, that his nervous system was more likely than not permanently damaged, rendering him unable to perform surgery properly. In addition, the plaintiff claimed that the orthopedic surgeon’s assistant, a general surgeon, was negligent in providing the closure of surgical wound. As a result, they claimed, the patient developed a hematoma resulting in partial paralysis, loss of bladder control, loss of sexual function, and chronic severe pain. She suffered from cauda equina syndrome, a condition caused when blood compresses the nerves and results in nerve death. Plaintiffs claimed that during surgery, she lost 2,200 cubic cm of blood because a drain was not used, causing cauda equina syndrome.

In their lawsuit, the plaintiffs alleged that the hospital was grossly negligent in its postoperative care as well as wrongfully credentialing the surgeon. They contended he should not have been allowed to practice at the hospital, even when initially credentialed because the hospital knew the Oklahoma Board had disciplined him.

In their defense, the physicians and hospital claimed that an initial MRI showed postoperative changes, but that the hematoma was not detectable at that time. Defendants contended the orthopedic surgeon’s care and treatment were appropriate and that surgery was necessary. Further, the hospital maintained that an appropriate postoperative team participated in the plaintiff’s care after the orthopedist withdrew from practice.

The patient’s past medical expenses were $265,000, including rehabilitation. She was unable to return to work. A loss-of-future-earning claim was made; the amount is unknown. The patient’s husband also filed a loss-of-consortium claim.

All defendants participated in a substantial yet confidential settlement prior to trial.

What this means to you: Health care practitioners with a substance abuse problem may often be given a second chance. But that second chance should be accompanied by heightened monitoring, particularly in the credentialing and reappointment processes commensurate with the nature of the health care providers vocation.

"Criteria should be in place for increased monitoring or supervision of a known substance abuser physician. This is one of the questions on the original application for hospital privileges and is also included in the reappointment process; therefore, this person is known to the chief of the particular medical specialty department," states Joan Bristow, vice president of risk management for The Doctors Company in Napa, CA. "Either the credentialing or executive committees can make the decision to monitor or supervise and also assign who will actually perform these tasks. Reports should be generated as proof of performance. With a substance abuse history, the physician might be periodically checked for use, by blood or urine testing, as a part of the credentialing and reappointment processes. Just as there is a responsibility to give one a second chance, there is also the primary responsibility to ensure patient safety."

Again, given the nature of the practitioners work, the results of the critical monitoring lab tests should be made as expeditiously as possible. "Although it does take time to run drug screens, there are shorter flash results that are available, similar to 12-hour culture results while waiting for the completed culture of 24-48 hours. While it may not be as accurate as wanted, it would give an alarm to he who receives the results. Another issue here is the question of where the lab results were sent? If the tests were only sent to the physician in question, there is potentially a big gap in follow-up," she observes.

Once an issue is discovered, hospitals, health facilities, and the physician’s practice should have mechanisms in place to appropriately handle both the impaired practitioner and their patients. "The critical next step for this hospital might be to determine who should have taken what action and when, then build it into the rules and regulations of the medical staff. In particular, there was a significant period of time — from Jan. 26 until Feb. 2 — when this woman was an inpatient without an attending physician. This is an absolutely unacceptable situation. Every charge nurse, if not the direct-care nurse, has a responsibility to communicate with the attending physician at regular intervals. Most medical staff rules and regulations contain language that addresses the frequency of physician visits to their patients. When more than 24 hours pass without a physician visit, the nurse must first call the attending, and if no response, should go up the chain of command until satisfaction is achieved. This is a nursing responsibility. Of course the out-going physician also has responsibilities. He must replace his care with another physician of the same medical specialty, should give notice to the patient or her family, and document in the medical record that the transfer of patient care goes from himself to the newly assigned physician," remarks Bristow.

As for the medical care provided in this instance, "there are usually standard operating procedures for positive radiology interpretations. When the interpreter recognizes a positive result he/she is obliged to notify the physician who ordered the test and convey those positive findings. There may be a need for additional radiological studies or at least correlation with the patient’s physical and current condition that will verify or not the value of the findings. If no policies or procedures address positive interpretations, it might be time to develop these. In addition, it is always interesting to note whether the surgical procedure was emergent, urgent, or elective, and often practitioners do not agree on this. Here it might be wise to develop pre-operative criteria that could be applied to orthopedic and neurosurgical patients to justify a need for spinal surgeries. Then when Murphy’s law kicks in, and there was an emergent or even urgent need for the procedure, defense is enhanced by alluding to the dire consequences without surgery. This is also an informed consent process issue, to make the patient and family aware of the risk and complications that are associated with the surgery," she concludes.

Reference

  • Loleta Horner and Clarence Horner v. Garland Community Hospital, Ltd., Bruce Hinkley, MD, and Ross Curtess, MD. Dallas (TX) County District Court, Case No. 00-00748-A.